WASHINGTON D.C.-The Tribal Supreme Court Project remains remains very busy, monitoring numerous cases at various stages of appeal within both state and federal courts, preparing amicus briefs in several Indian law cases before the various the U.S. Circuit Courts of Appeals, and analyzing new petitions for cert. The purpose of the Project is to strengthen tribal advocacy before the U.S. Supreme Court by developing new litigation strategies and coordinating tribal legal resources, and to ultimately improve the win-loss record of Indian tribes. The Project is staffed by attorneys with the Native American Rights Fund (NARF) and the National Congress of American Indians (NCAI) and consists of a Working Group of over 200 attorneys and academics from around the nation who specialize in Indian law and other areas of law that impact Indian cases, including property law, trust law and Supreme Court practice. In addition, an Advisory Board of Tribal Leaders assists the Project by providing the necessary political and tribal perspective to the legal and academic expertise.

The Tribal Supreme Court Project Update below provides an overview of the Indian law cases pending before the U.S. Supreme Court and the work being performed by the Tribal Supreme Court Project.

UPDATEOn Monday, September 24, 2007, the Court conducted its opening conference for the October Term 2007, and, as expected, denied review in all three Indian law cases it considered. At present, petitions for cert are pending in four Indian law cases. However, we anticipate that a number of additional petitions for cert will be filed in the next several weeks, including one in Carcieri v. Kempthorne as reported last month. Carcieri is a case which began as a broad challenge by the State of Rhode Island to the Secretary’s authority to take land into trust on behalf of Indians and Indian tribes. The U.S. Court of Appeals for the First Circuit upheld the Secretary’s authority to take land into trust on behalf of the Narragansett Tribe and rejected all of the state’s arguments, including: (1) Section 5 of the Indian Reorganization Act (IRA) is an unconstitutional delegation of legislative authority, violates the 10th Amendment and violates the Enclave Clause of the U.S. Constitution; (2) Section 5 of the IRA applies only to tribes that were “recognized Indian tribes now under federal recognition” in 1934, thus excluding the Narragansett Tribe and any other tribe administratively recognized after 1934 from the benefits of the IRA; and (3) the Rhode Island Settlement Act implicitly precludes the acquisition of any additional new trust lands by the Secretary in the State of Rhode Island, or implicitly restricts any such acquisition of trust lands to be subject to state civil and criminal laws and jurisdiction. We do anticipate that a number of other states will be filing an amicus brief(s) in support of Rhode Island as part a larger coordinated strategy by these states to mount more significant legal challenges to the acquisition of trust land for the benefit of Indians and Indian tribes. The Tribal Supreme Court Project will continue to work closely with the attorneys for the Tribe and the United States to oppose review by the Court.

The Project remains very busy developing strategy and coordinating resources in a number of Indian law cases recently decided by, or currently pending in, the various U.S. Courts of Appeal where review by the U.S. Supreme Court may be contemplated. One example is State of Texas v. U.S. in which the U.S. Court of Appeals for the Fifth Circuit issued a fragmented opinion which held that the Secretarial Procedures Regulation (25 C.F.R. Part 291) is invalid. The Secretarial Procedures Regulation, promulgated pursuant to the Indian Gaming Regulatory Act, provided an alternative process for approval of a Class III gaming compact when a state refuses to negotiate in good faith and raises a defense of Eleventh Amendment immunity from suit under Seminole Tribe.

Copies of briefs and other materials for each of the cases listed in the Update are available on the NARF website at http://www.narf.org/sct/index.html. For more information please contact Richard Guest, NARF Senior Staff Attorney, at 202-785-4166.